Theoretical Grounds of the Challenging of the Transactions under the Bankruptcy Legislation

2016 ◽  
Vol 4 (11) ◽  
pp. 0-0
Author(s):  
Аюна Аюрова ◽  
Ayuna Ayurova

A lot of national and foreign researchers attempted to examine the theoretical grounds of the challenging of the transactions under the bankruptcy legislation. Thus, tort and quasi-delictual theory, the theory of executive power of the judgment, the theory of the judicial lien and legal theory have been developed. However, until now there hasn’t been developed a unified approach to understanding of the question of what is the basis of the creditor’s right to demand recognition of the debtor’s invalid transaction committed by itself with a third party, in respect of which insolvency (bankruptcy) case has been initiated. This paper analyzes the main concepts developed in support of the rights of the creditor and assesses their strengths and weaknesses. The study and its findings formulated on the basis of the former have allowed the author to offer his own opinion based on challenging the debtor´s transactions. The author reveals the purpose of legal regulation of invalidity of transactions the debtor committed to them on the eve of bankruptcy. This purpose is to protect the rights and property interests of both the debtor and the creditors, as well as is the formal (violation of the law) and material (violation of the property rights of the debtor and its creditors) base to contest the transactions.

Author(s):  
Krystyna Szczepanowska-Kozłowska

AbstractOne form of industrial property right infringement is stocking for the purpose of offering or marketing. This form of infringement appears both in EU legal acts on trademarks or designs, as well as in national regulations, including those concerning patents. What is specific to stocking when compared to other activities comprising the stipulated exclusivity of the holder of industrial property rights is the fact that the literal meaning of “stocking” does not explain whether the infringing party or the warehouse keeper is the entity that places the goods in storage. The structure of industrial property rights as absolute rights would theoretically permit the view that the law is violated by both the entity that accepts the goods for storage and the entity that places such goods in storage. To determine if there is an infringement, it must be established what the goods being stocked are further intended for. It is not without significance that the finding of an infringement of industrial property rights does not depend on fault or awareness. From the point of view of the industrial property law regime, it is difficult to find arguments against this understanding of infringement by stocking. Since the offeror of goods infringing industrial property rights may be held liable even if the goods have not yet been manufactured, it is conceivable that the entity accepting such goods for stocking is also liable. This interpretation of the concept of stocking would certainly correspond to the absolute nature of liability for infringement.In a recent judgment the CJEU confirmed that the warehouse keeper who, on behalf of a third party, stores goods which infringe trademark rights only creates the technical conditions for trademark use by this third party provided that the warehouse keeper is not aware of that infringement. The CJEU also confirmed that only the person who decides about the purpose of storing the goods can be treated as an infringer. However, the CJEU did not respond to the question regarding whether the warehouse keeper could be treated as an infringer if it pursues the aims of storing the goods at the request of the entity that put the goods into storage.


Author(s):  
K. Nekit

The article examines the concepts, legal nature of smart contracts, as well as the advantages and disadvantages of smart contracts as a basis for ownership. The technical and legal aspect of the concept of smart contract is considered. Models of using smart contracts are described. Approaches to determining the legal nature of smart contracts are presented. It is concluded that two models must be considered when using smart contracts. The first model is external, when the program code does not replace the agreement, but only automates its execution. The second model is internal, when the code completely or partially replaces the terms of the agreement. Among the advantages of smart contracts as grounds for the emergence of property rights can be identified, first of all, the inability to change the terms of the contract and interference in its work. However, at the same time, this feature is a disadvantage of the smart contract, as it does not allow to take into account the objective circumstances that may affect the implementation of the agreement. The problem of oracles when using smart contracts is also considered. It is noted that the use of oracles actually means the involvement of a third party in the transaction with all the risks that arise from it. The problem of involving notaries and state registrars in transactions on acquisition of property rights on the basis of a smart contract is analyzed. The problems of lack of legal regulation of smart contracts, in particular, related to its transnational nature, is investigated. The problem of protection of the rights of the parties to the smart contract is analyzed, in particular, related to technical errors and outside interference. Temporary solutions regarding the use of smart contracts and general recommendations on the legislative definition of smart contracts are proposed.


Author(s):  
Venetskay Marina

The article is devoted to improving the legal regulation of the replacement of a party to an obligation in the civil legislation of Ukraine, taking into account the needs of civilian turnover and economic practice. The reasonability of the additional settlement of issues of reimbursement of contracts for the assignment of claims and compensation for additional costs associated with such a concession, as well as the introduction of the institution of the assignment of contracts into Ukrainian civil law, is argued. The lack of a direct indication of the law on the remuneration of a claim for assignment of a claim has led to the emergence of a number of interpretations of such a transaction as being non-remunerative. Meanwhile, according to the basic provisions of the Civil Code of Contract - the contract is repayable, unless otherwise stipulated by the contract, law or does not follow from the essence of the contract. In addition, the consequence of concluding a deed of assignment claim is the acquisition by the new creditor of property rights that are property, so the free acquisition of property must be considered as a gift, an indication that is absent in the legislation. Unknown to the contract law of Ukraine and the civil institute of contract withdrawal, which is sufficiently widespread in economic practice and is regulated by European legislation. . The meaning of a contract cancellation is to transfer from one person to another the rights and obligations under the contract with a third party, ie it is a simultaneous combination of the cancellation of claims and the transfer of debt. It is necessary to extend the methods (structures) of transfer of debt through the introduction in Ukrainian civil law of the methods known since Roman times, in particular, the expropriation as a separate construction of the replacement of the debtor in the obligation, which occurs on the initiative of the creditor and on the basis of the agreement concluded between such credit and the new debtor in the absence of the need to obtain such consent from the original debtor; and intercession as a construct, when a new debtor is joined to the obligation (which may be divisible) and each of them must fulfill the obligation in its share.


Author(s):  
Ben McFarlane ◽  
Andreas Televantos

This chapter identifies and explores a core task of private law: to determine “third party effects” of transactions. We ask to what extent an A–B transaction may affect C, a party who enters into a subsequent transaction with A, or otherwise interferes with the right claimed by B. We show first that such third party effects are controlled not only by rules relating to legal property rights and equitable interests, but also by parts of the law of agency, of partnerships, and of tort. Secondly, whilst a range of doctrines thus share this function of controlling third party effects, it is important to distinguish between the precise legal form used by each doctrine. Thirdly, we argue that even when considering one particular form, such as that of a legal property right, third party effect is determined by the interaction of different types of rules, with the practical operation of one type of rule modified by the application of a different type. For this reason, attention must be paid to the interaction between the different forms used to govern third party effect. There is a question as to whether the law in this area is unduly complex, but we suggest that, so long as the range of forms tracks the diversity of ordinary transactions, private law usefully enhances party autonomy by offering parties these different means of casting their legal relations.


2010 ◽  
Vol 113-116 ◽  
pp. 980-984
Author(s):  
Li Mei Zou ◽  
Wen Bin Chen

The forestry carbon sequestration transaction (FCST) needs the guide of the law and policy. The subjects of FCST include buyers and sellers; the object is forestry carbon sequestration and the third party mainly includes brokers and measurement certification authorities. The effective elements of FCST legal behaviors need four main aspects. The establishment and regulation of legal systems includes transactional prices, three kinds of performing modes transaction, the benefit distribution of subjects, the mode of bearing legal reasonability and the trade dispute means.


Author(s):  
Elena НAVINSKA

The article deals with the procedure for certification of a life-support maintenance (care) contract in the law of Ukraine. The author analyzes its theoretical and legal basis, especially the emergence of problems and consequences of such a contract in realization the rights and interests of potential counterparties. The necessity of a notarial certificate of the contract of life maintenance on the basis of duration of the contract and its aleatore character is substantiated. The duties of the notary at the certification of the contract are as follows: clarification of the content of the contract and the value of the project submitted by them; verification of compliance of the content of the draft agreement with the intentions of the parties; establishment of a possible conflict between the draft contract and the requirements of the law. The notarial consultation consists in familiarizing with the rights and obligations of the parties: the alienator and the acquirer. The author described in detail the existing advantages and disadvantages (the problems of functioning) of this type of contract of obligatory law and highlighted the peculiarities of its action on the basis of court decisions and practice. Some problems were associated with the transfer of the real estate property to the acquirer's property, the integrity of contracting parties to the contract, the complexity of taking into account the terms of the agreement by the alienator, the element of the commissioning of the third party agreement and the peculiarities of termination of the contract in the court. The consequences of the implementation and termination of the contract of life maintenance (care) are explained. The author states that this institute of civil law needs more detailed legal regulation. The gaps in legislation on the rights and obligations of the parties are noted.


2016 ◽  
Vol 4 (10) ◽  
pp. 0-0

Existence and certainty of conflict of laws rules on the representation provide predictability of legal regulation of these relations that have a foreign element. In this regard researches about issues of national and unified conflict regulation of representation are relevant. The present article is devoted to the questions of conflict regulation of representation in the Russian Federation contained in the article 12171 of the Civil Code of the Russian Federation — the novel of the domestic legislation which is in force since the 1st November 2013. The conflict of laws rules regulating internal (between an agent and a principal) and external relations of representation (between a principal and a third party and between an agent and a third party) are analyzed (on the base inter alia of comparative legal method). The author makes a conclusion about predictability, equation and flexibility of the conflict of laws rules of the Russian law on the representation, which in general comply with the rules of the Hague Convention 1978 on the law applicable to agency, and with the rules of many foreign legal systems. The author proposes the further development of the Russian conflict regulation of relations of representation, particularly: giving the possibility of choosing the law applicable to external relations of representation to an agent and a third party; determination of the moment of time when an agent has his habitual residence or place of business if a principal hasn’t chosen the law applicable to the external relations of representation.


Author(s):  
Nina Samolovova

Key words: industrial design, intellectual property, unregistered Community design,novelty, individual character In order to harmonize legal relations in the field of intellectual property with the EU memberstates, a new Law “On the Protection of Rights to Industrial Designs” entered intoforce in Ukraine, in which a new term appears — an unregistered industrial design (un-RID) similar to the unregistered Community design (UCD). Thus, together with the registeredindustrial design, the information about which is entered in the Register and forwhich the Certificate was issued, the term of property rights of which is valid for 5 yearsfrom the date of filing the application with the Institution and can be extended, if necessary,up to 25 years, now there is a new one in the Law — an un-RID, the term of legalprotection of which is 3 years from the date of its bringing to the general knowledge onthe territory of Ukraine. The law provides for the same legal regulation for the protectionof registered and unregistered industrial designs.The legal protection granted to registered and un-RIDs has a lot in common. Themain differences between an un-RID and a registered industrial design are the absenceof formal requirements for acquiring rights, a short term of protection, and alimited scope of rights granted to the owner of an un-RID. Since an un-RID is a newinstitution of intellectual property law for Ukraine, the article discusses options forsolving these issues in practice in the member states of the European Union. The articleprovides examples of decisions of the EU courts related to the protection of un-RIDs in the fashion industry. It follows from the practice of national courts that themost relevant un-RIDs are in industries that offer products that are in demand for ashort-term, do not require significant costs and a complex registration procedure,therefore they are relevant to design solutions in the fashion, jewellery and accessoriesindustry. The article also analyses the state of protection of intellectual propertyrights in the fashion industry in Ukraine. In Ukraine, with the introduction of anew institute of intellectual property rights, designers have great new opportunitiesto protect their collections from copying and other violations.


2021 ◽  
pp. 23-29
Author(s):  
Iryna YEFREMOVA

Introduction. Adoption of new laws of civil and substantive law, the novelty of legal relations governed by the rules of these laws, the complexity of civil conflicts arising from these legal relations, require a high level of legal protection, compliance with the rule of law by all members of society. Only the law allows interested parties to choose the form of protection. This form can be traditional – jurisdictional (provides for the establishment of a body and procedure for the protection of violated rights), and non-jurisdictional (but certainly allowed by law), which may resort to interested parties. obstacle to the exercise of the right. Resolution of legal conflicts is possible not only through a jurisdictional form of protection. A non-jurisdictional form of protection of civil rights is the independent protection of a person of his violated rights. That is, the person does not apply to the competent state authorities. In fact, it is the commission of actual actions aimed at protecting and securing their personal property and other non-property rights. The purpose of the paper is a thorough study of models of non-jurisdictional protection of property rights in the system of protection of civil rights by analyzing the theoretical and practical aspects of using alternative methods of protection of private rights in general and mediation. Result. It is determined that the non-jurisdictional form of protection of civil rights is the actions of citizens and organizations aimed at protecting their own civil rights, freedoms, and legally protected interests. It is noted that these actions are carried out and implemented by eligible entities independently, without seeking legal assistance from government agencies and structures, as well as officials. It is determined that the mechanism of legal protection is implemented in non-jurisdictional ways in the field of legal regulation when it is necessary to overcome and eliminate obstacles that arise in the exercise of rights and legitimate interests of the subject of law, in other words – to quickly protect (ensure) legal status. It is determined that in international practice, namely in European countries, the basis of non-jurisdictional protection of property rights is mainly in the use of negotiation and mediation procedures. Non-jurisdictional form, which is usually local in nature, is achieved as a result of actual actions, occurs not in jurisdictional or procedural forms, but within the protected substantive legal relations, which are the subjects of such legal relations (usually imply The main difference between jurisdictional and non-jurisdictional forms of protection of rights is that the protection of rights in jurisdictional form is carried out by the competent state and public authorities with each of them a certain procedural order of activity, while protection in a non-jurisdictional form takes place within the framework of a substantive legal relationship and is carried out by the parties themselves in the legal relationship. Conclusion. The study proves that in Ukraine, priority should be given to the development of various forms of out-of-court dispute resolution. The basis for this should be the legislative consolidation of out-of-court settlement of civil disputes as one of the basic principles of protection of violated private rights (of course, without revoking or replacing the right to judicial protection). Non-jurisdictional methods of protection of private rights are defined in the legislation of Ukraine and can be used due to the dispositive nature of the civil law method of regulation. However, this is insufficient, as participants in civil legal relations in case of violation of their rights are primarily confronted in the law with a defined right to judicial protection of violated rights, and often consider the court as the only possible form of protection.


2020 ◽  
pp. 14-18
Author(s):  
O. Davydiuk

Problem setting. Since 2002, after the entry into force of such a legal act as the Law of Ukraine “On Innovation”, within the national legislation of Ukraine was regulated for the first time the legal status of such an object of economic and civil turnover as innovation. The provisions of this normative document were quite revolutionary in terms of the powers of local self-government bodies, which were defined as full-fledged subjects of innovation relations. Despite the fact that the legal regulation of innovation implementation processes exists and improves in our country over the past 18 years, there are still a large number of gaps in regulatory impact, which negatively affect the practical implementation of local (regional) innovation projects. Analysis of recent researches and publications in the work were investigated the works of scientists such as Bielinska, Y. V.; Nezhyborets, V. І.; Orliuk О. P., Butnik-Siverskyi О. B., Myronenko N. М., Petryshyna О. М., etc. Article’s main body. in accordance with the provisions of Part 3 of Article 7 of the Law of Ukraine “On Innovation”, representative bodies of local self-government – village, settlement, city councils in accordance with their competence eliminate only 6 forms of participation in innovation relations. However, as the 18-year experience of legal regulation of the process of application of this norm shows, only a few territorial communities are able to organize the full implementation of a comprehensive program of innovative development of their region. At the same time, the main vector of further expansion of the rights of local governments in the field of innovation has already been determined by the provisions of current legislation of Ukraine. Thus, ratifying the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community and their Member States, on the other hand, the State of Ukraine by Law of № 1678-VII of 16.09.2014, recognized the right to innovation and regional development on their basis is an inalienable right of the territorial community and recognized that such development should take place according to the rules established by the EU Framework Program for Research and Innovation “Horizon 2020”. In our opinion, the forms of participation in innovation activities for local governments provided by EU legislation will allow them to significantly increase the level of socio-economic development of the region and therefore should be reflected in current legislation of Ukraine through the implementation of foreign experience in legal regulation. Conclusions and prospects for development. The current legislation of Ukraine for local governments provides only an exclusive list of forms of participation of such bodies in the innovation process. The analysis of EU legislation allows to determine the role of local governments in innovation processes, as an institution that should provide infrastructure / assistance to other participants through a system of established institutions in which all necessary prerequisites for production and technical support of innovation and close interaction (contact) with the participants of these relations. It is considered expedient to amend Article 7 of the Law of Ukraine “On Innovation Activity” by expanding the list of powers of local self-government bodies in innovation processes. The main directions of expansion of such innovations should be: (a) introduction of new forms of participation of local governments in innovation activities which will be characterized by a higher degree of individuality and selectivity to stimulate the development of those types of innovation activities that meet the needs of a particular region. (b) Granting local governments the right to act as an investor / customer of innovations by concluding agreements with specific economic entities engaged in scientific, research or innovation activities. (c) Imposing an obligation on local governments to control the use of property or resources transferred under the terms of the concluded agreements. (d) Establishing the possibility of financing the developers of innovations only in the case of transfer of property rights (part of property rights) to the objects of intellectual property rights that will be created (may be created) as a result of such financing or security. (e) Obligation of local governments to implement the received innovations through the existing system of utilities, institutions, institutions in the life support system of the region


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